Institutional Attitudes in Context: A Comment on Rawlings' ‘Engaged Elites—Citizen Action and Institutional Attitudes in Commission Enforcement’

• Author: Peter Gjerloeff Bonner
• Date: 01 March 2001
• Published date: 01 March 2001
• DOI: http://doi.org/10.1111/1468-0386.00121

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Institutional Attitudes in Context:

A Comment on Rawlings' `Engaged ElitesÐ

Citizen Action and Institutional Attitudes in

Commission Enforcement'

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Peter Gjerloe Bonner*

In his discussion of the Commission's Article 226 complaint procedures,

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Rawlings set

out to be innovative in two main respects. At the substantive level he proposed

changes to the so-called Article 226 complaints procedures. At the level of methodol-

ogy he attempted to demonstrate (quoting) `the utility of socio-legal studies in

European administrative law: for many years a retarded, insuciently theorised

discipline, with too narrow a court-oriented focus.' The present comment focuses on

a `secondary' novelty feature of Rawlings' article, namely his thorough use and

critique of the European Ombudsman (I shall hereinafter refer to the Ombudsman

as the `EO'). In some European jurisdictions the reports of the parliamentary

ombudsman constitute important, some times even unavoidable, sources of adminis-

trative law. In the EU doctrine there is still some way to go, with references to EO

decisions being very sparse. Rawlings' article therefore gives strong implied impetus to

a more intensive use and evaluation of the EO's decisions. This is a sound develop-

ment, especially given that the EO has been the initiator of several norm-creating

developments, through his `quasi case law' as well as his own-initiative inquiries.

Given the rarity of application and criticism of the EO's decisions, it is unsurprising

that the occasional EO case-analysis will often itself provoke comments. Rawlings'

discussion of the EO's practice on Article 226 complaints procedures calls for

comments in two respects, namely the concrete suggested shortcomings of the EO's

decisions, and methodology.

To brie¯y recap on the EO practice which Rawlings refers to, the development has

been the following. The EO Oce began its work in late 1995, following the

Maastricht Treaty amendments (Treaty on European Union Article 8d, EC Treaty

Article 138e, now 195). Early on, the EO received complaints about the Commission's

handling of so-called Article 226 complaints concerning alleged breaches of EC law by

Member States. Article 226 EC (formerly 169) is the Treaty provision that empowers

the EC Commission to take Member States before the Court of Justice for breach of

Community law. According to the Commission itself, Article 226 complaints from

private persons are the most crucial source of information about such possible

European Law Journal, Vol. 7, No. 1, March 2001, pp. 114±119.

#Blackwell Publishers Ltd. 2001, 108 Cowley Road, Oxford OX4 1JK, UK

and 350 Main Street, Malden, MA 02148, USA

* The author is PhD researcher at the European University Institute, Law Department. He has worked as a

trainee with the European Ombudsman 1998±1999. E-mail: pbonnor@hotmail.msn.com

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ELJ 6(1), March 2000, p. 4.